with whom NEWMAN, Chief Judge, joins concurring:
I join in Judge KERN’s opinion, although I believe it is important to clarify and emphasize the “two distinct situations in which the appearance of vindictiveness may require an inquiry and judicial intervention.” Ante at 396. I agree that the first situation “is where the prosecutive decision is based on discriminatory grounds of race, religion, national origin, or other impermissible classification.” Ante at 396. The *397second category, however, is not limited to situations in which the accused has been brought to trial for a second time.** The filing of additional criminal charges before the first trial, in some circumstances, may manifest sufficient vindictiveness to warrant judicial intervention. See Wynn v. United States, D.C.App., 386 A.2d 695 (1978) (government’s filing of additional charges after nonprejudicial dismissal of first information for want of prosecution manifested vindictiveness warranting vacation of convictions on the additional charges). On this record, however, I do not see sufficient indication of vindictiveness to warrant remand to the trial court.
According to the opinion for the court: “The other situation is where the accused is treated more harshly on retrial because he has exercised a conferred right to that new trial as in Blackledge v. Perry, supra [417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)], or North Carolina v. Pearce, 395 U.S. 711 [89 S.Ct. 2072, 23 L.Ed.2d 656] (1969). See Bordenkircher v. Hayes, supra [434 U.S.] at 362-63 [98 S.Ct. at 667].” Ante at 396 (footnote omitted) (emphasis added).